A “Charter Rights First” Approach To The Intersection Of Freedom Of Expression And Copyright

Graham Reynolds is an Assistant Professor in the Faculty of Law at Dalhousie University in Halifax, Nova Scotia, Canada, and an IP Osgoode Research Affiliate.

Recent legislative developments in Canada and the United Kingdom (UK) have raised concerns that expansions in copyright protection may negatively impact freedom of expression rights. In June 2010, the Canadian Government introduced Bill C-32, the latest attempt to reform the Canadian Copyright Act. Bill C-32, modeled in part on the American Digital Millennium Copyright Act, proposed to expand the rights of copyright owners at the expense of freedom of expression concerns. The UK’s Digital Economy Act, which received Royal Assent in April 2010, has also been criticized for expanding copyright protection at the expense of freedom of expression concerns.

My doctoral project, entitled “A ‘Charter Rights First’ Approach to the Intersection of Freedom of Expression and Copyright”, will examine the intersection of freedom of expression and copyright, an understudied area of both Canadian and UK human rights law. Copyright has been said to be both “the engine of free expression” and a restraint on free expression (Harper & Row v. Nation Enterprises, 471 US 539 (1985)). It has been said to be the engine of free expression due to the belief that the economic incentives provided by copyright laws spur individuals to create works that would not otherwise have been created. It has also been said to be a restraint on free expression, as copyright laws prevent individuals from legally engaging in certain speech acts or expressive acts using copyright-protected works.

Given the importance of freedom of expression and the potential for copyright laws to act as a restraint on free expression, one would anticipate that the intersection of freedom of expression and copyright would have received a great deal of judicial and scholarly attention. This has not been the case in Canada or the UK. Few Canadian and UK judicial decisions have addressed this intersection, and only a limited number of works have been written on this topic by Canadian and UK academics. By comparison, the intersection of freedom of expression and copyright has been addressed in many American judicial decisions, and by an impressive number of American academics.

The lack of attention by Canadian and UK courts and commentators to this issue is significant. Over the past century, copyright protection has dramatically expanded in the United States of America (US), in Canada, and in the UK (among other countries). Bill C-32 and the Digital Economy Act are simply the most recent Canadian and UK examples of this trend. As indicated above, expansions in copyright protection may pose threats to freedom of expression, as copyright owners have an increased ability to prevent individuals from expressing themselves using copyright-protected works.

My doctoral project will challenge the reluctance of Canadian and UK courts to use freedom of expression arguments to constrain the expansion of copyright law. Building on the ideas of American copyright and First Amendment scholars, I will argue that the Canadian Copyright Act and the UK’s copyright legislation should be rewritten based on freedom of expression principles.

Graham has received both a Trudeau Foundation Doctoral Scholarship (see his biographical information here) and a Social Sciences and Humanities Research Council Doctoral Fellowship to support his doctoral studies.  See also his profile at the Faculty of Law at Dalhousie University. Graham is also a member of Dalhousie Law School’s Law and Technology Institute and the Co-Editor-in-Chief of the Canadian Journal of Law and Technology.

  1. I think Bill C-32, although not perfect, attempted to address this issue and strike a balance between protecting copyright holders on the one hand and not suppressing freedom of expression on the other.

    The 32 exceptions contained in Bill C-32 immediately come to mind. It’s clear from these exceptions (e.g. fair dealing, educational institutions, TPMs, etc.) that Parliament does acknowledge that there are certain situations that merit a loosening of copyright exclusivity. At the same time, protecting the hard work of copyright holders must also be taken into consideration.

    It’s difficult to draw a line in the sand and isolate those exact instances when someone’s freedom of expression is infringing copyright and when it’s not. I think Bill C-32 was the closest step Parliament has made to demonstrating that there are circumstances where there is no copyright infringement, but the line should be drawn if someone’s freedom of expression is allowing them to benefit monetarily from another’s idea.

    Very interesting topic and best of luck on your doctoral project.

  2. This subject is certainly due for a thoughtful Canadian analysis. The tension between copyright and free speech does seem to be more evident among US writers. Neil Weinstock Netanel wrote an interesting book on this subject aptly entitled “Copyright’s Paradox” which is, of course, principally informed by the US First Amendment.

    I think that some of the tensions between copyright and free speech become more apparent as we are increasingly asked to see copyright as a property right rather than a balancing of interests among author, owner, user and public. The implementation of copy protection technologies under DMCA presents a very stark choice between owner and user/public, not yet capable of much nuance. I think legislators have rationalized the adoption of these measures in large part because of the increasing appeal of the arguement of copyright as primarily a property right. Consequently, free speech issues will become increasingly relevant as a means to bring the consideration of author, user and public rights and interests back to the discussion.

  3. I’m delighted to hear that you’ll be working on this, Graham, and I look forward to seeing the results. I’m reading this thread now because I’m just about to lead a session on ‘IP, the Internet and Free Expression’ in Osgoode’s IP Intensive program this afternoon. I can’t let it go, however, without a shameless plug: I wrote an article on this topic in the Canadian context, which is available here: http://muse.jhu.edu/journals/university_of_toronto_law_journal/v056/56.1craig.pdf. I also deal with it in my new book (http://www.e-elgar.co.uk/bookentry_main.lasso?id=13745). But I certainly agree that it’s an area in need of more scholarly attention, particularly in light of Canada’s current policy direction. We can’t afford to keep copyright and freedom of expression in ‘logic-tight compartments’ for a moment longer. Good luck with the project!

  4. This subject is also treated from a US angle in “No Law – Intellectual Property in the Image of an Absolute First Amendment” by David L. Lange and H. Jefferson Powell.

  5. I also applaud this investigation and discussion. In the entertainment and media bar, we are suspicious of using CCH as the harbinger of “user’s rights” and a simplistic solution to clearance questions. The reasoning has many critics and the case has to do with photcopying. The whole area of Fair Dealing–absent any further creativity by the legislators–needs more cases and more commentary.

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